Terrorist Surveillance Program . . . Never Mind? Or New and Improved (and "Complex and Innovative")?

Marty Lederman

Hmmmmm . . . this is a twist. The President has "determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires," and the Department of Justice will now submit its surveillance applications to the FISA Court for approval. Indeed, this volte-face apparently is the result of the fact that DOJ has convinced a FISA judge to issue "innovative and complex" orders in one precedential case already. So says a new letter from the AG to Senators Leahy and Specter.

According to the letter, the FISA court seems to have approved orders finding that at least part of the FISA statutory standard was [would be?] satisfied -- that "one of the communicants is a member or agent of Al Qaeda or an associated terrorist organization." (That's not quite the statutory standard, which requires that the target of the intercept be such an agent, and also that "each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.") It apparently took "considerable time and work" for DOJ to persuade the FISA judge to go along with whatever this newfangled sort of approval is. (According to Tony Snow, the FISA Court has promulgated "guidelines" and "rules" to govern this new form of approval.)

The ACLU case challenging the legality of the TSP is, at least for now, scheduled to be argued before the U.S. Court of Appeals for the Sixth Circuit in two weeks. And a decision in a related case is pending before Judge Lynch in the Southern District of New York. Does this development moot those cases? [UPDATE: DOJ has informed the court of appeals that it intends to file both classified and public papers soon "addressing the implications of this development on the litigation."]

Is the FISA court being asked to determine whether partilcular instances of surveillance satisfy FISA's substantive standards? (Presumably, but who knows?) To somehow do so on a category-wide basis, issuing generalized rather than case-specific orders? (That would be "innovative," that's for sure! Hard to see how the statute would allow it.)

Justice Department officials said that the FISA court orders, which were not made public, were not a broad approval of the surveillance program as a whole, an idea that was proposed last year in Congressional debate over the program. They strongly suggested that the orders secured from the court were for individual targets, but they refused to provide details of the process used to identify targets — or how court approval had been expedited — because they said it remained classified. . . .

Justice Department officials would not describe whether the court had agreed to new procedures to streamline the process of issuing orders or accepted new standards to make it easier for the government to get approval to monitor suspect e-mail and phone communications. But the officials suggested that the effort to obtain the court’s approval for orders on Jan. 10 was not easy. “These aren’t some sort of advisory rulings,” one official said. “These are orders issued by the FISA court, not some cookie-cutter order. These orders are complex. It took a long time to work on this.”

The officials said the new approach was based on evolving legal interpretations of the foreign surveillance law by the Justice Department, changes in the foreign surveillance statute in recent years and precedents set by the FISA court in approving specific requests to conduct electronic monitoring.

The transcript of the background conference call with DOJ officials is here. The officials there claimed that the new procedures "will comply in all respects with the requirements of the FISA statute," and that the FISA court is making probable cause findings pursuant to statutory standards. One official did stress, however, that the orders "take advantage of . . . developments in the law before the FISA court." In other words, the FISA court apparently has been persuaded that in some respects the FISA statute is more forgiving than previously understood -- that it demands less proof or proof of a different kind than what the court once required. Orin Kerr provocatively surmises that perhaps what's going on here is a form of anticipatory warrant. It's unlikely that we'll know the details of this secret new internal law of FISA anytime soon.]

Why didn't this happen years ago? Might it have something to do with the prospect of a possible big government triple-loss on (i) state secrets privilege; (ii) FISA; and (iii) its article II arguments -- a development that DOJ would understandably be eager to avoid?

Curiouser and curiouser . . .

[UPDATE: Without knowing anything more about it, my sense is that this is probably a beneficial development, whatever its impetus might have been. I find it very difficult to imagine that the FISA court would roll over and approve an "innovative" legal theory if it were dubious -- especially not in this context, where DOJ has many incentives to get the FISA court on-board and where the congressional and public spotlight is shining so brightly. Without the New York Times, and Judge Taylor, and the 2006 election, this would never have happened. Sunshine is the best disinfectant, and all . . . . Even though the public might never find out exactly what's up here, presumably Congress and the FISA court are now acting as some not-insignificant checks. And if so -- if the extreme and unilateral positions of the Executive are a thing of the past here, the system has worked.

But that's only a tentative judgment, of course.]

[QUESTION FOR OLD-SCHOOL FISA INSIDERS/OLD-TIMERS: Would we have gotten to this point, say, five years ago, and avoided the whole constitutional crisis, if Mary Lawton were still alive?]

ANOTHER GOOD SIGN:

This press release from the new Chair of the House Intelligence Committee, Silvestre Reyes:

For the past year, since the disclosure of the President's warrantless surveillance program, I have urged the Administration to seek warrants from the Foreign Intelligence Surveillance Court before eavesdropping on the American people. Today, the Director of National Intelligence informed me that the Administration has heeded this advice and will now seek court authorization for all surveillance conducted under this program.

This decision is welcome news, if long overdue. It proves that this surveillance has always been possible under the Foreign Intelligence Surveillance Act (FISA) and that there was never a good reason to evade the law. I commend our former Ranking Member Jane Harman, who pressed the Administration for months to bring this program under supervision of the FISA Court.

This announcement does not end our Committee’s interest in this matter. Until our Committee has the opportunity to review the Court orders and conduct in-depth oversight over this program, I am withholding judgment on whether it is effective and whether it protects the rights of the American people.

The President still insists that he has the inherent authority to conduct surveillance of Americans without court warrants. I strongly disagree and believe that FISA remains the exclusive way to conduct electronic surveillance of Americans.

I also recognize that the effort to bring this program under FISA required a great deal of work by the Attorney General and his team, and I am hopeful that the decision to comply with FISA will demonstrate a renewed commitment to the Constitution and the rule of law.

What is the White House thinking? Is there no principle subject to negotiation? Is there no course subject to reversal? For the Bush administration to argue for years that this program, as operated, was critical to our national security and fell within the president's Constitutional authority, to then turnaround and surrender presidential authority this way is disgraceful. The administration is repudiating all the arguments it has made in testimony, legal briefs, and public statements. This goes to the heart of the White House's credibility. How can it cast away such a fundamental position of principle and law like this?

Can the plaintiffs argue against mootness on the basis that the program can be just as easily restarted as it has been stopped (if so), and that lacking a court ruling against the program, the plaintiffs suffer essentially the same harm as if it was being actively pursued?

(That's not quite the statutory standard, which requires that the target of the intercept be such an agent, and also that "each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.")

You're conflating the 50 USC § 1801(f) definitions of what constitutes electronic surveillance (which, later in the FISA law are required to be conducted pursuant to FISA warrants) with the exceptions to the court order requrements spelled out in 50 USC § 1802.

Two separate situations: If the physical intercept takes place domestically, or the "target" is a "U.S. person" within the UNited States, it's an "electronic surveillance". Notwithstanding the court order requirement for such "electronic surveillances", 50 USC § 1802 abrogates the "gentleman's rule": Spying on foreign powers' internal communications (which is essentially what 50 USC § 1802 covers, regardless of locus) is okey-dokey; we will read their mail if we can.

The TSP reportedly involves international calls where one end of the call is a telephone number captured from al Qaeda.

The problem with obtaining a FISA warrant under the statutory language is that you would need probable cause to believe that the target of this surveillance is an agent of al Qaeda. The mere fact that the telephone number was captured from an al Qeada member does not usually provide probable cause to believe that the user of that number of the person being called is al Qaeda. It could be bin Laden's favorite falafel maker.

Thus, the Administration must have convinced the FISA court to interpret the statutory language very loosely to find that captured telephone numbers generate probable cause that the user is al Qaeda.

One would think that the ACLU case has been mooted to the extent that it seeks an injunction against future surveillance outside of the FISA court. However, are they seeking damages for past activities outside of FISA?

Yes, IC you're right. Mea Culpa ... particularly to Prof. Lederman. I had confused the "facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power" with the 50 USC § 1802 language ("the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title").

Prof. Lederman gave the standards for obtaning the court order (when such a court order is legally required). But other sections cover whether such a court order is legally required in the first place, which had been the bone of contention (in not applying to FISA courts, the evidentiary standard was irrelevant). 50 USC §§ 1801-02 cover the situations which constitute "electronic surveillance" and the exceptions to the court order requirement for such.

50 USC § 1804 delineates the requirements (assuming the court finds the requisite "probable cause" as per 50 USC § 1805) for "targets" for FISA court approved surveillances (more specifically defined in 50 USC § 1801(), and prescribes minimisation measures to ensure that the surveillance is not overbroad and will not intercept too much unrelated content (other FISA sections deal with the handling of any unrelated content so acquired).

If indeed the DOJ has convinced the FISA court to use the standard "one of the communicants is a member or agent of Al Qaeda or an associated terrorist organization", it would seem the DOJ has convinced them to ignore FISA, and that hardly makes any such surveillances any the more legal. So it's possible that, while acknowledging the legal requirement for FISA court orders they had previously rejected, the DOJ may still be flouting the FISA law. And it's also posisble that maladministration is still doing what they were doing WRT not getting FISA warrants for the dicier snoops, but just not telling anyone about it.

To the left, Mr. Bush is some sort of monarch exercising absolute executive authority.

To the right, Mr. Bush is a weak President capitulating left and right on matters of constitutional principle.

Folks, its pretty plain by looking at his actions that Mr. Bush is and always has been a pragmatist who does what it takes to get what he wants.

In this case, it appears that the FISA court is now giving the Administration nearly everything it previously obtained through the TSP, so why pick a fight with a Dem Congress and the Courts when you have already won? Save your political capital for fights which are still undecided.

The question remains, Bart, if FISA Court is giving President Bush what he wanted, why didn't he apply to the court in the first place? Or why didn't he ask for approval of the TSP as part of the PATRIOT Act? If you're not breaking the law in the first place, why not comply with procedure as the law requires?

The National Review reaction raises extremely interesting questions, and not only about Bush's seriousness. (Re Bart's posting, incidentally, it's not really a contradiction to view Bush as a monarch and a weak-kneed pragmatist at the same time: The essence of monarchical power is precisely the ability to act arbitrarily, without needing to offer persuasive accounts. I think that all of us, regardless of our ordinary politics, can agree that Bush excels in at least this attribute of monarchy.)

But I think the deepest point raised by the National Review posting has to do with whether we expect public lawyers (put presidents to one side) to be sincere (for lack of a better word) when they claim that some limitation on ordinary rights is justified by a "compelling state interest," including the "highest interests of national security." I wrote an article quite a few years ago suggesting that state and federal attorneys general must in fact believe that such incursions on liberty can pass the test; they cannot merely "pretend," as it were, to the Court that that is the case.Nor, I think, can they simply take the word of non-lawyer civilians that the standards are met.

Or, put it this way: If courts should in fact defer at all to claims by the state (including the national government) that the highest interests are presented in a given case, then courts should be able to rely on a filtering process by the state's lawyers. If they are merely mouthing words (especially if those words involve things like "the president knows things you don't"), then the courts ought give no particular deference to the state.

The Bush Justice Department is rife with issues as to what "professional responsibility" really is in the modern post-Sept. 11 era.

The question remains, Bart, if FISA Court is giving President Bush what he wanted, why didn't he apply to the court in the first place? Or why didn't he ask for approval of the TSP as part of the PATRIOT Act? If you're not breaking the law in the first place, why not comply with procedure as the law requires?

At the time the TSP was implemented, it appears that the FISC was not going to provide warrants for the surveillance. Indeed, I do not see how they could based on the reported parameters of the TSP and the statutory probable cause language.

Based on their testimony before the Specter Committee, the FISC judges simultaneously thought that FISA review was a good idea but the President had the authority to perform the surveillance without such review.

Therefore, it is not at all surprising to find that the FISC agreed to a far more expansive interpretation of the FISA statutory probable cause requirements in order to deal themselves back into the program to provide oversight.

Professor Kerr has a good take on the judo move Bush appears to have just pulled off.

http://volokh.com/posts/1169072027.shtml

For such a stupid, lame duck maladministrator without political capital, Mr. Bush manages to out fox his allegedly far more intelligent political opponents time after time.

Baldly asserting that which was in question must work well in DUI practice, 'cause you can't seem to stop trying it. Folks here tend to want legitimate support for points like this, and you have none to offer. For someone who claims to be non-partisan you sure do back Bush to the bitter end, crowing victory even while others see him wimpering away with tail between his legs.

De Palma... For such a stupid, lame duck maladministrator without political capital, Mr. Bush manages to out fox his allegedly far more intelligent political opponents time after time.

I agree with Anne's comment @ 6:17, but if you wish to engage in Bush "puffery" and myth making it won't suprise anyone.

It could be Alfred E. Newman in the Oval Office, or even you, De Palma. This is contrived and executed by the extremist whiz kids from the Federalist Society and experienced political knife fighters like Cheney's camp.

Hmm. Sitting judge or DUI attorney. I wonder who's opinion I'm going to take seriously. And before you whine, "ad hominem! ad hominem", we're talking inductive reasoing here, so speaker credibility is just one more relevant fact for making our decisions.

Leaving Minnesota for Colorado, I decide to make a stop at one of those rest areas on the side of the road. I go in the washroom. The first stall was taken so I went in the second stall. I just sat down when I hear a voice from the next stall...

- "Hi there, how is it going?"

Okay, I am not the type to strike conversations with strangers in washrooms on the side of the road. I didn't know what to say so finally I say:

- "Not bad..."

Then the voice says:

- "So, what are you doing?"

I am starting to find that a bit weird, but I say:

- "Well, I'm going back to Colorado..."

Then I hear the person say all flustered:

- "Look I'll call you back, every time I ask you a question this idiot in the next stall keeps answering me."

What is so wrong with prohibiting state racial discrimination of one race against another? Nothing. It is a great idea and a great ideal, which is probably why the 1964 Civil Rights law was passed in the first place.

Truly, this post didn't read, to me, like you are experiencing any conflict in your opinions. It reads like you want someone to argue a position you have prepared for them.

You have been accused by others of slinking away from losing arguments, of surfing the blogger attention span to your illegitimate benefit. Here's your chance to prove folks wrong, at least on that particular count. How about it?

Somewhat unexpected from somebody like Gonzalez I guess, but the were signs already that people in DoJ figured they are in trouble after the November election.

One example -- they agreed to pay 2 millions in damages to B. Mayfield for what the FBI did to him despite strong objections from that agency. That was highly unusual given that the US government almost never compensates victims of its own misconduct.

The political winds are blowing the other way and they are adjusting accordingly.

The DoJ remains however an aberration that this country will have to do something about sooner or later. There exists NO other modern European democracy where a government agency dealing with “justice” would be as politicized as our own DoJ.

If you have any doubts read letters Alito wrote to Meese when he was trying to land a job with DoJ.

Ideological servility of the most unprincipled, unpleasant kind.

Or consider the fact that there exist no effective way to prosecute high level members of US security apparatus in this country -- Hoover, Mueller and like are outside the reach of any US attorney -- and contrast that with recent successful prosecution (including arrests!) of such people in Italy.

----

Bringing some elements of domestic spying/survailance systems under a nominal control of FISA court is unquestionably a step in right direction.

The Congress however should make that control meaningful, under present legal/statutory regime the control is illusory, FISA judges are EXPLICITLY prohibited from investigating or even questioning anything the FBI/NSA/DoD/SS etc submit in support of their applications.

This has to change as soon as possible if that court is to be something more than a shameful charade.

It could be Alfred E. Newman in the Oval Office, or even you, De Palma. This is contrived and executed by the extremist whiz kids from the Federalist Society and experienced political knife fighters like Cheney's camp.

Forgive me if I take this latest name calling with a rather large grain of salt. I have been hearing liberals calling conservatives "neanderthals," "stumblers," "amiable dunces," and just plain "stupid" for going on 40 years now. Then libs explain their losses to these parade of "fools" by engaging in conspiracy theories about evil geniuses standing behind the curtain and pulling the strings.

If we can get past the name calling and partisan sniping for a moment and get back to the subject at hand...

There could be another reason why the Administration wants to have the TSP surveillance in its entirely blessed by a FISA warrant apart from wanting to avoid fights in Congress and in the Courts. Justice may want any evidence gathered under this surveillance to be admissible in criminal court.

Prior to FISA, the court of appeals in United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), held that evidence gathered under warrantless surveillance conducted primarily for intelligence gathering could be admitted as evidence in a criminal prosecution of the target. However, once Justice got involved in the surveillance, the court considered the primary purpose of the surveillance to be for criminal prosecution and the surveillance then required a warrant to be admissible as evidence.

If the entire TSP falls under a blanket FISA warrant, then Justice can be involved and the resulting evidence is arguably admissible under the Truong standard.

I agree that this is a positive delopment regardless of the cause, but I'm disappointed that it will probably halt the legal challenges to the NSA wiretapping program. The timing of the administration's decision, just a couple of weeks before 6th Circuit oral arguments in the ACLU v. NSA lawsuit, makes me think that the decision is part of the Administration's strategy to dodge judicial review of its own broad claims of inherent executive authority. At some point I hope that the courts get to pass judgment on--and reject--many of those claims

The White House cover story doesn't compute. If DOJ had been wrangling with the FISA court over legal standards it would surely have gone to Congress for help. Congress offered time and again to relax standards as needed – even did so – and the issue can't have been purely constitutional, "purely" in the sense that not even legislative action would have made a difference.

We thus are asked to believe that the Bush White House set out on a five-year mission: to win judicial hearts and minds under 1978 standards. Standards that Bush publicly slimed as outmoded.

De Palma... In any contest, misunderestimating your opponent is generally fatal.

"Misunderestimating" your ability to grasp irony is not generally fatal but provides one with a good belly laugh, restricting oxygen to the brain. Neither Ronald Reagan nor George W. Bush were ever more than malleable and electable. Most folks here are discerning enough to know who the real "Mayberry Machiavellis" are, and the threat they pose to democracy and liberty.

Overestimating an opponent, or just not knowing him, or yourself, at all, can prove just as fatal and this is where this crowd have put us all at great risk.

Know thy enemy and know thyself, find naught in fear for 100 battles. Know thyself but not thy enemy, find level of loss and victory. Know thy enemy but not thyself, wallow in defeat every time.

"Bart (commenting on the fate of persons held in Gitmo): Given this will most likely be a multi generational conflict like the Cold War, th[ese] detention[s] [are] effectively a life sentence. Thus, the only reason to go through a trial is to impose a death sentence."

"Bart (commenting on the lack of protections for the innocent in the MCA: My family has my birth certificate and can personally testify as to my citizenship."

You often seem to benefit, after a fashion, from the slightly skewed attention span afforded by this medium; it allows you to dodge hard questions. Sadly for you there's always cut-and-paste of your inanities to remind old hands and warn new readers exactly what kind of thinker we're dealing with here.

Here's a question you never have answered: Which words in the text of MCA preclude it being our own Nacht und Nebel? You spent quite a bit of time fighting other fights but somehow never got around to answering this. Could it be because the answer is, "Nothing"? Woudn't an honest man be able to say so?

# posted by Robert Link : 7:31 PM

I am grateful to Robert (and Arne before him) for taking the time and making the effort to illuminate your modus operandi and manipulation of the medium, as well as the weakness of your arguments, for the casual reader and less enlightened layperson. Many questions have been posed that you have never responded to and those of us who are familiar with you know you are not likely to. Surprise us.

@JT Davis: I'm quite sure that if someone would take the time to dig into the archives of balkanization, one would find that what Bart is now describing as a cunning victory for the president, was seen by him as a defeat that would endanger the safety of all US citizens.

Before you start speaking for robert, you might want to first check his links and then review all the the prior times I have answered his unlinked little horror show hypothetical about the White House disappearing me. Robert is certain that he has made a brilliant point with that hypothetical and just does not want to accept no for an answer. I laid out exactly how lawyers on my behalf would proceed under the current law.

I wouldn't presume to speak for Robert, De Palma. He speaks well enough for himself. I only said I appreciated what he and Arne, and others do here and elsewhere and repeated what he said. I'm glad I don't have to speak to you. This is about as close to you as I'd want to get. That's not meant to be cruel or hurtful, it's just a statement of fact.

I have seen his weathervaning (or flip-flopping), and seen the De Palma claiming that Baghdad was a safer city than Detroit, or some such similar nonsense. I have some very conservative friends whom I respect immensely yet disagree with often. One who came out of retirement (a hard core Vietnam era USMC Gunnery Sgt.) to work as a private contactor in Iraq, so I know real conservatives who have been there. Their opinion of De Palma is that he is simply quite deranged. They call it Bush Derangement Syndrome, although that's not what Charles Krauthammer had in mind.

Bart: ...you might want to first check his links and then review all the the prior times I have answered his unlinked little horror show hypothetical about the White House disappearing me.

This, in turn, is a flat-out lie. I have asked repeatedly for text from the MCA, you have repeatedly dodged with various nonsensical retreats. And in this self-same comment thread I repeated the question, "Which words in the text of MCA preclude it being our own Nacht und Nebel?" You never answer with the words of the MCA, because you can't. Neither, apparently, can you admit as much. Your claim that I haven't asked a question, here or elsewhere, or that you have already answered is nothing short of a lie. It ill becomes you, this dishonesty, this cowardice.

But I think the deepest point raised by the National Review posting has to do with whether we expect public lawyers (put presidents to one side) to be sincere (for lack of a better word) when they claim that some limitation on ordinary rights is justified by a "compelling state interest," including the "highest interests of national security." I wrote an article quite a few years ago suggesting that state and federal attorneys general must in fact believe that such incursions on liberty can pass the test; they cannot merely "pretend," as it were, to the Court that that is the case.

As I posted on my blog, Gonzales very recently made the declaration once again that matters of "national security interest" are too complicated and fact-intensive for judges to decide on, and we ought to give the preznit free rein in making such decisions. This is nonsense given the abysmal record of the maladministration on such "antional security interest" matters, but in addition, it is the judges who are more knowledgeable about the tradeoffs between "national security interest[s]" on the one hand, and civil rights and the rule of law on the other. "Necessity" is not some absolute; if it were, we'd be "of necessity" a totalitarian police state. The Constitution itself makes tradeoffs between "security" and liberty in a number of areas, and interpretation of the Constitution and the laws is the prvince, in the end, of the judiciary.

Based on their testimony before the Specter Committee, the FISC judges simultaneously thought that FISA review was a good idea but the President had the authority to perform the surveillance without such review.

They ("simultaneously") said no such thing. This is a gross mischaracterisatin of their testimony (not to mention one of the "FISC judges" "Bart" is alluding to wasn't even a FISC judge; not to mention this was hardly a canvass of all the FISC judges).